' SYED JAMSHED ALI, J.---Leave is sought against the judgment dated 12-9-2005 of the learned Lahore High Court whereby R.S.A. No,72 of 1986 filed by respondents Nos. 1 to 6, the successors in interest of Sandhey Shah, was allowed the judgment and decree dated 25-2-1986 of the District Judge, Vehari were set aside and the suit filed by Abdul Ghafoor Khan, the petitioner, (hereinafter called the vendee) was dismissed. The facts of the case are noted hereunder.
2. Against mortgage rights Muhammad Ramzan was allotted evacuee land measuring 309 kanals, 15 marlas out of which Abdul Ghafoor Khan, his son respondent No,8 (hereinafter called the vendor) acting as his general attorney, through a registered document (Exh.P.1) dated 10-3-1965 agreed to sell land measuring 125, kanals 2 marlas to Abdul Ghafoor Khan deceased now represented by his legal heirs for a consideration of Rs,35,000 out of which a sum of Rs,23,000 was paid at the time of execution of the agreement while the balance was to be paid at the time of registration of the sale-deed before the Sub-Registrar, after payment of the Government dues in lump sum and conferment of proprietary rights. Such rights were conferred on Muhammad Ramzan vide Mutation No,43 attested on 10-5-1965. Thereafter, the vendor lodged a report with the Patwari on which Mutation No,45 was entered. When it came up for attestation, it was found that the District Council fee had not been paid. Accordingly, it was paid (Rs,350) on 23-6-1965. Thereafter, the mutation again came up before the Tehsildar which was duly sanctioned on payment of balance sale price of Rs,12,000.
3. Muhammad Ramzan died on 15-4-1967 on which Mutation No,79 was attested on 23-8-1968 were by 7/8th share devolved upon the vendor while Karim Bibi widow was given 1/8th share which she gifted to her grandsons vide Mutation No,87 attested on 10-12-1968. It was averred in the plaint that the vendor, in collusion with the Revenue officials, including the Patwari, played a fraud by removing 'NM Sarkar' and 'Pant Patwar' of Mutation No,45 in favour of the vendee and substituted it with another mutation bearing same number (45) purporting to be a sale transaction by Muhammad Ramzan son of Mangal in favour of the vendor. The vendor, however, sold land measuring 100 kanals in favour of Sandhey Shah, the predecessor-in-interest of respondents Nos. 1 to 6 for a consideration of .Rs,1,35,000 and then another 171 kanals, 3 marlas (including the disputed 125, kanals 2 marlas) were sold by him in favour of Sandhey Shah on 31-10-1968 through registered sale-deeds which were duly given effect to in the Revenue Record.
4. On the application of the vendee dated 19-3-1969, an inquiry was held by the Tehsildar and on the basis of his findings (Exh.P.2) a criminal case was registered against Haq Nawaz, Patwari and a duplicate ( 0-4' ) of Mutation No,45 was directed to be prepared by the Deputy Commissioner vide his order dated 25-9-1969. Against the said order. Sandhey Shah filed a suit which was withdrawn on 24-10-1973 with permission to bring a fresh suit. It is also to be noted that, meanwhile, the vendor had also filed a suit on 31-5-1969 for cancellation of the sale-deeds executed in favour of Sandhey Shah, which, .However, ended into a compromise and, was, accordingly disposed of on 20-1-1970 whereby the vendor withdrew his suit. In this background Abdul Ghafoor Khan, the vendee filed the present suit on 6-5-1974 against the vendor, Sandhey Shah, and the Province of Punjab seeking a declaration that he was the owner in possession of the disputed land. The vendor filed a confessional written statement while a separate written statement was filed by Sandhey Shah's legal representatives, who had, meanwhile died.
5. The suit was contested, tried and vide judgment dated 16-5-1985, it was dismissed. On appeal, having been taken before the District Court by the vendee, the judgment and decree of the learned trial court were reversed on 25-2-1986 and the suit decreed. Second Appeal No,72 of 1986 .Filed by respondents Nos. 1 to 6 was allowed by the learned High Court and the suit dismissed.
6. Mr. Gul Zarin Kiani, Advocate Supreme Court appeared for the petitioners. He submitted that in para. 1 of the plaint it was averred that the vendor was the duly constituted general attorney of his father which was a registered document. This averment was not specifically denied, necessary details of the power of attorney were entered in the agreement without which the document could not have been entertained even for registration. He relied on sections 32 and 35 of the Registration Act. He not only referred to the relationship of principal and the attorney but also the fact that till his death on 15-4-1967 Muhammad Ramzan did not challenge either the general power of attorney or the agreement made on his behalf. He maintained that neither any issue was framed nor it was claimed by respondents Nos. 1 to 6 in respect of this controversy. He explained that since only part of the land of Muhammad Ramzan had been alienated, the original power of attorney was with the vendor and was not within possession or power of the vendee. He however, submitted that a certified copy has been placed on the record before this Court and this Court has ample power to take into consideration the said document and could even record further evidence. Reliance was placed on Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051, and Zar Wali Shah v. Yousaf Ali Shah and others 1992 SCMR 1778. His next submission was that the learned High Court, while interfering in second appeal, did not compare the reasoning of the learned trial Court and the learned first Appellate Court, aid not advert to important evidence with the result that the impugned judgment is not' in accordance with law laid down by this Court emphasizing the duty of the learned High Court in such like cases in Alloo v. Sher Khan and others PLD 1985 SC 382. He next contended that there was overwhelming evidence on record to prove that the vendor had acted as duly constituted attorney of Muhammad Ramzan while executing Exh.P.l and on the basis of Exh.P.l, Mutation No,45 was duly entered at his instance thereby proving the transaction of sale, the substituted Mutation No,45 was in fact, a fake document which was disowned by Muhammad Ramzan son of Mangal who was examined as P.W.11. He referred to the statement of P.W.8, the Tehsildar, P.W.9 the Assistant -Commissioner, (who had conducted the inquiry as Tehsildar) P.W.11- A. Nazir Ahmad Shah, Patwari, and the order of the Deputy Commissioner directing preparation of duplicate of Mutation No,45. He also submitted that the suit filed by the petitioner could be treated as one for specific performance and necessary amendment in the plaint even allowed by this Court. He also pressed section 43 of the Transfer of Property Act to submit that both the agreements as well as the sale were completed by Abdul Ghafoor Khan, the attorney, who had himself acquired title in the said property and, therefore, it could be enforced against him.
7. On the Other hand, Ch. Imdad All Khan, learned Advocate Supreme Court appeared for contesting respondents Nos. 1 to 6. He invited our attention to the plaint which shows the suit was filed in respect of specific khasra numbers. His contention is that on the death of Muhammad Ramzan his widow, Mst. Karim Bibi, inherited 1/8th share from every inch of the total area of the holding of Muhammad Ramzan, therefore, in her absence the suit was not properly constituted and was liable to be dismissed. His next contention is that in para.1 of the written statement of the contesting respondents the general power of attorney was specifically denied when it was averred that the agreement was without lawful authority and unless the general power of attorney was produced and proved, any admission made by the vendor or entry of mutation on the basis of Exh.P.1 was-of no value, and the copy produced before this Court could not be looked into at this stage by this Court. Reliance was placed, on Abdul Rehman through L.Rs, v. Haji Muhammad Yousaf through. L.Rs, 2007 SCMR 61. His next contention is that since in the land, subject-matter of the agreement, (Exh.P.1) Mst. Karim Bibi, widow of Muhammad.. Ramzan was also a co-share the effect of her non-implement rendered the suit for partial performance which was not permissible.
Reliance was placed on Sinaullah and others v. Muhammad Rafique and others 2005 SCMR 1408 and Wali and others v. Manak Ali and others PLD 1965 SC 651. He also contended that two important facts in the plaint i,e, payment of Rs,23,000 before the Sub-Registrar and possession having been given under the agreement (Exh.P.1) were not correct. He maintains that the learned Appellate Court wrongly applied section 53-A of the Transfer of Property Act because the plaintiff was already in possession which was even so admitted by him in this cross-examination. His next submission is that the subsequent vendee had no prior notice of the agreement (Exh.P.1) and that it was never so asserted in the plaint. Reliance was placed on Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53. Referring to the Jamabandi for the year 1961 62, a copy of which was issued on 11-9-1965, he contended that it did not contain note about Mutation No,45. His submission is that had the mutation been sanctioned it should have been mentioned in the `khana kafiat' of the said Jamabandi. He next submitted that admission of Muhammad Ramzan in the previous suit of Sandhey. Shah or the admission in the written statement in the present suit was not relevant because Muhammad Ramzan had not been left with any interest in the land and, therefore, it did not qualify as an admission. As far as non-framing of issue in the question whether the vendor was duly constituted as an attorney is concerned the omission was not material.
Reliance was placed on the Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82, and Muhammad Akram alias Raja v. Muhammad Ishaque 2004 SCMR 1130.
His another contention is that Transfer of Property Act is not applicable in Punjab Therefore, section 43 of the said Act could not be invoked. He reiterated that the petitioners did not get the agreement duly completed inasmuch as that neither registered sale-deed was executed nor mutation was duly sanctioned. Thus, there was no sale in the absence of the aforesaid documents.
According to him, the validity of the agreement not having been established, in the absence of proof of general power of attorney neither the title suit nor one for specific performance was maintainable. In any case, he submitted, that since the first sale in favour of Sandy Shah was made on 26-8-1968 which amounted to refusal to perform the agreement, the suit having been filed on 6-5-1974 was hopelessly barred by time because limitation for such a suit was three years under Article 113 of the Limitation Act. And, since no specific period for completion of the agreement was specified the period of three years would start from the date of refusal to perform.
8. We have considered the submissions made by the learned counsel for the parties. In fact, the suit of the vendee was one for declaration based on title derived through a completed oral sale.
Therefore, the crucial questions to be answered are whether Abdul Ghafoor Khan the vendor validly acted as attorney of Muhammad Ramzan, his father, whether agreement to sell (Exh.P.1) was duly executed and whether in pursuance thereto the sale in favour of the vendee had been completed?
9. Before we advert to the above questions we consider it necessary to note down the reasoning and findings of the three courts. The learned trial Court found that since the suit was one for declaration and the land was in possession of the plaintiff, the suit was within time, Mst. Karim Bibi was a necessary party, therefore the suit was bad for her non-joinder, valuation of the suit for the purpose of court-fee and jurisdiction was correct and execution of Exh.P.1 was duly proved: Entry of Mutation No,45 in favour of the petitioner was duly proved but it was not proved that it was duly sanctioned therefore, the suit should have been for specific performance and not for declaration.
Respondents Nos.l to 6 were found to be bona fide purchasers for value. The learned Appellate Court found that the suit could not fail against the vendor by virtue of the provisions of Order I, Rule 9 of the Code of Civil Procedure. The finding that Exh.P.1 was duly proved was affirmed: It was noted that conferment of proprietary rights on 10-5-1965, after payment of the Government dues, corroborated payment of consideration of Rs,23,000 on the date of execution of the agreement i,e, 10-3-1965. It was further observed that the Sub-Registrar would not have registered Exh.P.1 unless he was satisfied that the vendor was duly constituted attorney. Testimony of P.W.5, P.W.8, P.W.11-A and P.W.12 was relied upon to hold that the vendor, was a duly constituted attorney of his father, the vendee had entered into possession of the disputed land in Kharif 1965 and since he had paid consideration for the agreement i,e, Rs,23,000 he would not agree to pay rent as tenant. It was also noted that Muhammad Ramzan, on whose behalf, the fictitious Mutation No,45 was inserted in the mutation register, did not own any land in the village and this mutation (fictitious Mutation No, 45) was cancelled on 12-11-1966. As far as the sale is concerned, the statement of Lumberdar, P.W.5 that of the Tax Clerk of District Council P.W.6, testifying payment of District Council fee on 23-6-1965 (Exh.P.3) in the sum of Rs,350 (at the rate of 1% of the sale consideration) and statement of P.W.11-A, the Patwari that the Revenue Officer had recorded the statements of the parties and had announced sanction of the mutation was also believed and the conclusion was that the sale was complete. Reliance was placed on Jangi v. Jhanda and others PLD 1961 BJ 34.As far as the claim of respondents Nos. 1 to 6, of being bona fide purchasers for value is concerned, testimony of D.W.5, D.W.6 and D.W.7 was disbelieved. It was observed that possession of the vendee was sufficient notice, the sale-deed in favour of respondents Nos. 1 to 6 was registered at Multan and not at Mailsi where the land was situated which was therefore, sought to be kept secret, no inquiry was made from the person in possession, therefore, the conclusion reached was that respondents Nos. 1 to 6 were not bona fide purchasers for value.
10. The learned High Court in the impugned judgment found that the observation of the learned District Judge that the power of attorney was not denied is not correct, neither secondary nor primary evidence of execution of the power of attorney was produced. Admission of the vendor in the present suit was not binding on respondents Nos. 1 to 6 as he had alienated his entire property and was left with no interest in the subject-matter. Therefore, assumption of the learned District Judge that the vendor acted as attorney of his father was net sustainable. Section 53-A was held not be applicable. It was found that possession of the petitioner was entered in Khasra Girdawaris in Rabi 1964 and not Kharif 1965 as noted by the learned District Judge. Neither the sale mutation was produced nor it was implemented in the Revenue Record and that mutation of inheritance of Muhammad Ramzan was not challenged.
1.1. The judgment of the learned High Court .Is based solely on the finding that since execution of the general power of attorney by Muhammad Ramzan in favour of the vendor was denied. It ought to have been produced and proved without which Exh.P.1 had no legal effect. No other evidence was even noted in the impugned judgment. It will be appropriate to reproduce para. 1 of the plaint and the reply:-- " That land detailed in the headnote belongs to one Muhammad Ramzan son of Thiraj, now deceased father of defendant No,2, who was his attorney with unbridled powers of alienation as per registered power of attorney, dated 18-12-1964. The said Muhammad Ramzan through defendant No,2, contracted to sell this land to the plaintiff in consideration of Rs,35,000. An agreement of sale, in this behalf, was executed and registered on 10-3-1965, the salient terms of which were:--
(a) The total price of the land would be Rs,35,000 of which Rs,23,000 was to be paid at the time of registration of the agreement. (This amount was actually paid before the Registering Officer on 10- 3-1965 as per endorsement on the said deed).
(b) The land had been confirmed to the said Muhammad Ramzan in lieu of his mortgage rights and, on that count, he had yet to pay certain Government dues in this behalf, in installments. The sale was to be completed through a registered deed of sale or mutation, as soon as the said installments were paid up.
(c) The balance price of Rs,12,000 was to be paid either at the time of the registration of the sale- deed or at the time of attestation of the mutation of sale.
(d) Possession was forthwith delivered to the plaintiff. Reply on Facts 1. That para. No,1 of the plaint is absolutely erroneous, wrong and false and as such is not admitted. It is submitted that the suit land originally belonged to one Muhammad Ramzan the father of defendant No,2 and after his demise it devolved upon defendant No,2 and his widowed mother as heirs of the deceased to the extent of 7/8th and 1/8th share respectively vide Mutation No,79 dated 23-4-1988. After the answering defendant purchased in good faith the 7/8 share out of the suit-land along with other land from defendant No,2 in consideration of Rs,1,35,000 through a registered sale-deed dated 31- 10-1968, thence-forth the answering defendant is the absolute owner of the suit-land and in question. The so-called alleged agreement of sale is fictitious, forged collusive, mala fide, without consideration and lawful authority, illegal, void and inoperative qua the rights of the answering defendant:--
(a) That clause (a) of para. 1 of the plaint is not admitted as correct and as such it is vehemently denied.
(b) That clause (b) of para. 1 of the plaint under reply is admitted only to this extent that the such land has been confirmed to Muhammad Ramzan, deceased in lieu of his mortgage rights, the rest of the clause under reply is not admitted.
(c) That clause (c) of para.1 of the plaint under reply is absolutely baseless and false and as such is not admitted as correct.
(d) That clause (d) of para. 1 of the plaint under reply is totally untrue and erroneous and as such is not admitted. The plaintiff in fact continues to be a tenant at will of the suit-land under the answering defendant and the other co-sharers."
12. A perusal thereof shows that although contents of para. 1 were generally denied yet there was no specific denial of the fact that the vendor was the attorney of his father within the meaning of Order VIII, Rule 3 of the Code of Civil Procedure. However, since it had also been asserted in their reply that para.1 is not admitted the evasive denial does not amount to an admission within the scope of Rule 5 of aforesaid Order. However, it is an important fact to be viewed in the totality of the circumstances to determine the question of primary importance whether there was sufficient material on record to hold that the vendor, acted as duly constituted attorney of his father Muhammad Ramzan. It may also be noted that while the agreement was specifically denied, in this paragraph, the power of attorney was not so specifically denied. The other material on record which has totally been ignored from consideration by the learned High Court is conceding written statement of the vendor in this suit as well as in the written statement in the suit filed by Sandhey Shah, the inquiry report, the order of Deputy Commissioner directing preparation of duplicate Mutation No,45, P.W.5 son-in-law of the petitioner and lumberdar, P.W.8, the Sub-Registrar. And P.W.11-A, the Patwari, P.W.8 the Sub-Registrar proved execution of Exh.P.1 and acknowledgement of sale consideration, by the attorney of Muhammad Ramzan P.W.11-A the Patwari Halqa deposed that he had entered Mutation No,45, after seeing the power of attorney in favour of the vendor.
Apart from the said evidence, P.W.12, the plaintiff-vendee, also appeared in rebuttal to claim that the vendor aforesaid had acted as attorney of his father. It may also be noted here that P.W.5, P.W.8, P.W.11-A and P.W.12 were not questioned on this aspect of the matter nor any evidence was produced to rebut their assertion.
13.It may be observed that the original power of attorney was not in possession or power of the vendee and that no specific issue was claimed by respondents Nos. 1 to 6. The fate of a case does not depend on a single document and to arrive at just and fair finding the entire evidence and circumstances brought out on record have to be examined. Complete details of the power of attorney i,e, number and. Date along with book number were given in the agreement Exh.P.1 and if respondents Nos.1 to 6 had seriously disputed the capacity of the vendor to act as attorney of his father they could have conveniently produced a copy of the deed of attorney to negate the said recital in Exh.P.1. Section 32 of the Registration Act provides that, inter alia, an agent duly authorized by power of attorney executed and authenticated in accordance with section 33 thereof is competent to present a document for registration. Section 34 of the Registration Act requires an inquiry before registration of a document by the Registering Officer which inter alia, includes on inquiry whether or not the document presented before him was executed by the person by whom it purports to have been executed. Section 59 provides for endorsements to be made by the Registering Officer and according to section 60 on signing of the certificate of registration the same shall be admissible for the purpose of proving that the document had been duly registered in the manner provided by the said Act and that "the facts mentioned in the enforcements referred to in section 59 have occurred as therein mentioned". (underlined to supply emphasis). In this case the Registering Officer (P.W.8) was examined to specifically prove execution of Exh.P.1. One of the endorsements therein shows that the aforesaid documents was presented by the attorney. The effect of section 60 of the Registration Act came up for consideration before the learned Lahore High Court in Administrator-General Punjab v. M. Stanley Charles William Rose PLD 1986 Lah. 333 wherein the sale was made by the attorney and it was sought to be argued that in the absence of productiOn of power of attorney the sale made by him was not valid. The argument was repelled with the following observation:-- "As regards the non-production of the Powers-of-Attorney and the consequential arguments urged, it is to be noted that under section 60 of the Registration Act, 1908 presumption that the document was duly registered in the manner provided by the Act and that the facts mentioned in the endorsement referred to in section 59 had occurred as mentioned therein arises and consequently unless this presumption is rebutted the fact that the Attorney had acted under a proper Power-of-Attorney has to be presumed.".
Therefore, we are not persuaded to subscribe to the finding of the learned High Court that Exh.P.1 the agreement was of no legal effect in the absence of production of the general power of attorney in favour of the vendor.
14. As far as execution of Exh.P.1 is concerned, it has concurrently been so found and even otherwise there is sufficient evidence of its due execution. Since the scribe was dead, his son was examined as P.W.1, two marginal witnesses were also examined (P.W.2 and P.W.7) and the Sub-Registrar who registered Exh.P.1 was examined as P.W.8. There was no rebuttal to this evidence.
15. The third crucial question is whether the plaintiff was able to establish a completed sale and we have no reservation to say that it was so established. An endorsement on Exh.P.1 shows that payment of Rs,23,000 at the time of execution (although not before the Sub-Registrar) was admitted by the vendor and it was affirmed by P.W.8, P.W.11-A who entered Mutation No,45 based on Exh.P.1 and presented it before the Revenue Officer clearly stated that balance amount of Rs,12,000 was paid to the vendor. P.W.5 (the Lumberdar) was a witness to the mutation who testified that after the statements of the parties were recorded oral order announced by the Tehsildar was that the mutation was sanctioned. However the order was. Not written. This was also so stated by P.W.11-A. Another important circumstance is payment of District Council fee of Rs,350.
The rate of the fee noted by learned District Judge was 1% of the consideration and the amount of Rs,350 represents a sum of Rs,35,000 i,e, the total sale consideration.
16. The learned High Court found that the learned District Judge in his finding that the plaintiff was put into possession in Kharif 1965 did not correctly read the Revenue Record. We have examined Khasra Girdawaries Exh.D.13 and Exh.D.14. The plaintiff was recorded as a tenant in Kharif 1963 only in respect of Khara Nos. 1/16, 17, 24 and 25 on an area measuring 33 kanals, 4 marlas while he was entered as a tenant in Kharif 1965 in Khasra Nos. 2/20-21-4/1, 5/427 and 12 to 15, the total area of which was 77 kanals, 7 marlas. Thug, the plaintiff was delivered possession of at least 77 kanals, 7 marlas after execution of the agreement. The cumulative effect of evidence is that oral sale in favour of the petitioner stood established beyond any doubt. The learned District Judge rightly relied upon the judgment of the learned Lahore High Court in the case of Jangi supra.
17. The evidence produced in the case shows that original mutation No,45, based on the sale agreement i,e, Exh.P.1, was taken out from the mutation register and was substituted with a fake Mutation No,45, Muhammad Ramzan (P.W.11) on whose behalf fake Mutation No,45 evinced sale disowned the said transaction while the learned District Judge observed that he did not own any land in village in question. The learned District Judge had also noted that sale consideration in this mutation was Rs,2500 which would attract the District Council fee of Rs,25 only. The inquiry report Exh.P.2 clearly established that it was a fake mutation. The Tehsildar who had conducted this inquiry appeared as P.W.9 and testified to the aforesaid inquiry report which was the basis of a criminal case registered against Haq Nawaz Patwari and direction for preparation of duplicate of Mutation No,45 by the Collector. However, before the duplicate could be prepared litigation started between the parties. The Patwari aforesaid was however, acquitted as informed by the learned counsel for the petitioner.
18. As far as the question whether predecessor-in-interest of respondents Nos. 1 to 6 was a bona fide purchaser for value, we will like to observe that such a protection is available under section 27(b) of the Specific Relief Act as well as under section 41 of Transfer of Property Act. Protection under section 27(b) could be claimed by a person basing his claim on a perfected sale as against a person claiming on the basis of a prior agreement. Since the plaintiff's case was based on a perfected sale section 27(b) of the Specific Relief Act was not applicable. As far as section 41 is concerned, protection could only be claimed when the following conditions are satisfied:-- "(a) the transferor is the ostensible owner;
(b) he is so by the consent, express or implied, of the real owner;
(c) transfers for consideration; and
(d) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer."
There is ample judicial authority in support thereof. See Muhammad Jamil and others v. Lahore Development Authority and 3 others 1999 SCMR 2015 and the case of Kanwal Nain supra relied upon by the learned counsel fdr the contesting respondents. In this case not only condition (b) is totally missing but also that no reasonable care and caution appears to have taken by Sandhey Shah deceased in entering into the sale transactions. The registered sale-deeds in his favour were executed an registered at Mutlan and not at Mailsi where the land is situate. This was noted by the learned District Judge to hold that Sandhey Shah was not a bona fide purchaser for value. P.W.7 Ahsan Ali Shah, son of Sandhey Shah, appeared in support of their case. He admitted that on inquiry, it was found that the vendee was in cultivating possession of the land in question and that he was approached who had stated that he had no objection to the sale. This is a patent lie because no objection attributed to the vendee for sale in favour of Sandhey Shah cannot possibly be believed. In fact, a reasonable and prudent man will, in the normal course of human conduct contact the person in actual physical possession to ascertain the relevant facts. Thus we have no reservation in our mind to hold that protection of section 41 was also not available to respondents Nos. 1 to 6.
19.Taking the worst for the petitioner that in the absence of power of attorney, Exh.P.1 had no legal validity, we have to observe that on the death of Muhammad Ramzan 7/8th share of 309 kanals, 15 marlas fell to the share of the vendor which is more than 125 kanals, 2 marlas. He not only executed Exh.P.1 but had completed sale transaction as attorney of his father Muhammad Ramzan. If he was not duly constituted attorney then certainly the basis of Exh.P.1 was an erroneous representation.
Therefore, section 43 of the Transfer of Property Act was squarely applicable. We may add that courts are there to enforce a contract made by the parties but in exceptional cases and to avoid fraud the courts can even make contracts on behalf of the parties. These observations were made by a learned Division Bench in Gujerat Ginning and Manufacturing Co. Ltd. v. Motilal Hirabhai Spinning and Weaving Co. Ltd. AIR 1930 Bombay 84. In fact, section 43 of the Transfer of Property Act is an eloquent illustration of the aforesaid principle.
20. As far as the contentions of the learned counsel for the respondents are concerned, the effect of non-production of the power of attorney and that respondents Nos. 1 to 6 were bona fide purchasers for value have already been dealt with. The case of Abdul-Rehman supra relied upon by him did not involve a registered power of attorney. As far as non-joinder of Mst. Karim Bibi is concerned, we agree with the finding of the learned District Judge that to the extent of the vendor, the suit could be decreed. As to the contention that the learned first Appellate Court wrongly applied section 53-A, of the Transfer of Property Act nothing turns on it because the case was not covered by the said section. It was a case where declaration was sought on the basis of a completed oral sale. The contention that the Transfer of Property Act is not applicable in Punjab, has no merit either because the equitable principles contained therein have always been applied by the courts in this sub-continent. In fact it defeats his own argument of protection under section 41 of the Transfer of Property Act. The pleas of limitation and partial performance were relevant only if the suit was one for specific performance. The assumption of the learned counsel that there cannot be a sale without a registered sale deed or a sanctioned mutation has no merit because a sale mutation only records a concluded transaction.
21. For what has been stated above, we have no doubt in our mind that the learned High Court while interfering, totally kept out of consideration the relevant material and legal provisions (as pointed out by us in preceding paragraphs) in reversing the judgment and decree of the learned District Judge and, thus the Rule laid down in the case of Alloo supra was violated. We accordingly, convert this petition into appeal and allow it with the result that the judgment of the learned District Judge decreeing the suit of the vendee to the extent of 7/8th share out of the suit land measuring 125 kanals, 2 marlas stand restored. No order as costs.